J-S39015-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VERNON LEROY EALY, JR.
Appellant No. 1925 MDA 2015
Appeal from the PCRA Order Entered October 9, 2015
In the Court of Common Pleas of Franklin County
Criminal Division at Nos: CP-28-CR-0000747-2013, and CP-28-CR-
0000748-2013
BEFORE: STABILE, PLATT,* and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 28, 2016
Appellant Vernon Leroy Ealy, Jr. appeals from the October 9, 2015
order of the Court of Common Pleas of Franklin County (“PCRA court”),
which denied his request for collateral relief under the Post Conviction Relief
Act1 (“PCRA”). We affirm.
On August 31, 2010, the Chambersburg Police Department filed two
criminal complaints against Appellant.2 Both complaints charged Appellant
with one count of Manufacture, Delivery, or Possession with Intent to Deliver
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
42 Pa.C.S.A. §§ 9541-46.
2
Unless otherwise specified, these facts come from the PCRA court’s October
9, 2015 opinion.
J-S39015-16
and one count of Criminal Use of Communication Facility. 3 On the same
date it filed the complaints, Chambersburg Police received an arrest warrant
for the two cases.
The first attempt to serve the warrant took place on September 2,
2010, when Sergeant Rosenberry of the Chambersburg Police Department
visited Appellant’s last known address.4 N.T., PCRA Hearing, 8/5/2015, at
43-44. Appellant, however, was not present. Instead, Sergeant Rosenberry
spoke with Appellant’s mother who informed him that Appellant no longer
lived there and had moved to “New York or New Jersey.” Id. at 44.
Sergeant Rosenberry then provided her with his business card and left. Id.
Later that same day, Sergeant Rosenberry received a phone call from
Appellant. Appellant asked Sergeant Rosenberry why he had spoken with
his mother, whereupon Rosenberry informed Appellant of the warrant and
the need to return to Pennsylvania. Appellant did not turn himself in. N.T.,
PCRA Hearing, 8/5/2015, at 45.
Efforts to locate and apprehend Appellant continued after September
2, 2010.5 In February of 2011, Officer Jones again checked Appellant’s
____________________________________________
3
35 Pa.C.S.A. § 780-113(a)(30) and 18 Pa.C.S.A. § 7512(a), respectively.
4
As of September 2, 2010, Appellant’s last known address was 436 South
Main Street in Chambersburg, Pennsylvania. N.T., PCRA Hearing, 8/5/2015,
at 44.
5
Chambersburg Police kept track of their efforts to locate Appellant by using
an attempted warrant service log. N.T., PCRA Hearing, 8/5/2015, at 45.
The log in this case had more entries than usual. Id. at 56.
-2-
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Chambersburg address. On February 4, 2011, two other officers found
information on Facebook indicating that Appellant was attending the Anthem
Institute in New Jersey. Acting on this lead, the officers contacted the
Hillside Police Department in New Jersey and supplied them with Appellant’s
National Crime Information Center (“NCIC”) information. Later, in February
of 2012, Officer Leisher received notification that Appellant would be in the
Chambersburg area. In response, he went to visit Appellant’s mother at her
address on South Main Street.6 Nonetheless, Appellant continued to elude
capture.
Officers also availed themselves of other tools to determine Appellant’s
whereabouts. Sergeant Rosenberry, for his part, would occasionally use an
internet database to check for addresses associated with Appellant. N.T.,
PCRA Hearing, 8/5/2015, at 46. During one such search, Sergeant
Rosenberry noticed that Appellant’s address had changed in March of 2013.
Id. at 46-47. Following normal protocol for the situation, Sergeant
Rosenberry called the Orange Police Department in New Jersey and asked
that they check the new address.7 Id. 47, 49. The Orange Police
____________________________________________
6
Sergeant Rosenberry testified that officers visited Appellant’s mother on at
least three occasions. N.T., PCRA Hearing, 8/5/2015, at 48.
7
According to the attempted warrant service log, various officers had
contacted law enforcement in New Jersey three times prior to Sergeant
Rosenberry’s call to the Orange Police Department. Id. at 54.
-3-
J-S39015-16
Department thereafter apprehended Appellant on March 13, 2013. Id. at
54.
On March 10, 2014, Appellant entered a guilty plea to both counts of
Manufacture, Delivery, or Possession with Intent to Deliver. The trial court
immediately sentenced him to twenty to sixty months’ incarceration on each
count. The court ordered the sentences to run concurrently and that
Appellant receive credit for time served. Appellant thereafter filed a notice
of appeal, which he withdrew on May 6, 2014. He then filed the present
PCRA petition on June 30, 2014. The PCRA court denied Appellant’s petition
on October 9, 2015 and this timely appeal followed.
The single issue on appeal is whether the PCRA court properly
determined that the Commonwealth exercised due diligence in locating and
apprehending Appellant. See Appellant’s Brief at 5. For such an inquiry,
our standard of review is whether the PCRA court’s findings are free of legal
error and supported by the record. Commonwealth v. Martin, 5 A.3d 177,
182 (Pa. 2010) (quoting Commonwealth v. Abu-Jamal, 833 A.2d 719,
723 (Pa. 2003)). Thus, “[t]he PCRA court’s factual determinations are
entitled to deference, but its legal determinations are subject to our plenary
review.” Commonwealth v. Ghisoiu, 63 A.3d 1272, 1274 (Pa. Super.
2013) (quotation omitted).
After careful review of the record, and the relevant case law, we
conclude that the PCRA court accurately and thoroughly addressed the issue
on appeal. See PCRA Court Opinion, 10/8/15, at 6-14; PCRA Court’s Rule
-4-
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1925(a) Opinion, 12/7/15. Accordingly, we affirm the PCRA court’s October
9, 2015 order denying Appellant’s request for collateral relief. We further
direct that a copy of the PCRA court’s October 9, 2015 opinion and
December 7, 2015 Rule 1925(a) opinion be attached to any future filings in
this case.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/28/2016
-5-
••
• Circulated 07/26/2016 03:17 PM
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)
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Filed DEC 07 2015
~~.~--:::::-~~~~~-
~ ~;_
---~ ~
~ Clerk
IN THE COURT OF COMMON PLEAS OF THE 39™ JUDICIAL DISTRICT OF
PENNSYLVANIA-FRAN.KLIN COUNTY BRANCH
Commonwealth of Pennsylvania Criminal Action
V- v
No. 747-2013; 48-2013
v.
Post-Conviction Collateral Relief
Vernon L. Ealy, Jr.,
Defendant JUDGE JEREMIAH D. ZOOK
ORDER
Now this 7th day of December, 2015, the Clerk of Courts of Franklin
County is directed to transmit the foregoing Opinion Pursuant to Pa.R.A.P.
1925(a) to the Prothonotary of the Superior Court of Pennsylvania pursuant to
Pa.R.A.P. 1931(c).
The Clerk of Courts shall give notice to:
Matthew A. Sembach, Esq., Attorney for Defendant
Franklin County District Attorney's Office
Defendant, Vernon L. Ealy, Jr.,1 appeals from the Order of
Court entered on October 8, 2015.2 The Defendant filed a Notice
of Appeal on October 30, 2015. On November 5, 2015, this Court
entered an Order directing the Defendant to file within 21 days a
concise statement of matters complained of on appeal. The
Defendant filed a concise statement on November 10, 20153 raising
one issue, whether the Court erred by concluding that trial counsel
1 Defendant is an individual represented by Matthew A. Sembach, Esq ..
2 Denying the Defendant's Amended Petition for Post-Conviction Collateral Relief
3 The Court notes that attached to the concise statement was a certificate of service stating that
the Defendant served a copy of the statement on the Court; however, the Court never received a
copy.
Commonwealth v. Ealy CR ... o, 747-2013; CR 748-2013
Opinion Pursuant to PA.R.A.P. 1925(a) Page2
had a reasonable basis for not filing a motion to dismiss pursuant
to Pa.R.Crim.P. 600.
The reasons for the Order appealed from in this case were
adequately set forth in this Court's Opinion and Order of Court filed
of record on October 8, 2015. A copy is attached for ease of review.
It is respectfully requested that the Superior Court affirm in all
respects.
The Clerk of Courts shall give notice to:
Matthew A. Sembach, Esq., Attorney for Defendant
Franklin County District Attorney's Office
Filed OCT ff) 8 2015
The above captioned matter is before the court upon Defendant's
Amended Petition for Post Conviction Relief Pursuant to the Post Conviction Relief
Act (hereinafter PCRA Petition) filed on February 11, 2015. The Court held a
hearing on the PCRA Petition on August 3, 2015, during which Defendant was
represented by Shane B. Kope, Esq .. 1 The Court heard testimony from Joseph
Labbate, Todd M. Sponseller, Esq., Defendant, and Sergeant Anthony
Rosenberry of the Chambersburg Police Department. The matter is now ready
for decision.
1 The Court notes that Matthew A. Sembach, Esq., was appointed as counsel for the
Defendant; however, Shane B. Kope, Esq., appeared for the hearing in his stead.
PROCEDURAL HISTORY
On August 31, 2010, the Chambersburg Police Department charged the
Defendant by two separate criminal complaints with two counts of
Manufacture, Delivery, or Possession with Intent to Manufacture or Deliver.?
and two counts of Criminal Use of Communication Facility.3 An arrest warrant
was issued in both cases the same date.
On April 3, 2013, Defendant was arrested in New Jersey. Bail was set on
the same date; it was modified on April 16, 2013. On June 20, 2013, the
Commonwealth filed an Information. in the above captioned dockets. On June
26, 2013, Defendant appeared and waived formal arraignment.
On August 27, 2013, Defendant appeared4 for call of the list and made
an application for continuance which the Courts denied. On August 29, 2013,
Defendant filed a Motion for Continuance, which the Court" granted and
continued the matter to November 12, 2013. The time between August 29,
2013, and November 12, 2013, was excluded from the period of
commencement of trial under Pa.R.Crim.P. 600.
On August 29, 2013, Defendant, through counsel, filed an Omnibus Pre-
Trial Motion. That same date, the Court granted Deborah K. Hoff, Esq., leave to
withdraw as privately retained counsel, and appointed Michael J. Toms, Esq.,
the Franklin County Public Defender, to represent Defendant. On September
2 35 Pa.C.S. § 780-l 13(a)(30).
3 18 Pa.C.S. § 7512(a).
4 At this time the Defendant was represented by Deborah K. Hoff, Esq ..
s By the Honorable Shawn D. Meyers in CR 747-2013 and the Honorable Douglas W. Herman
in CR 748-2013.
6 By the Honorable Douglas W. Herman in both dockets.
2
10, 2013, Attorney Toms filed a Motion for Appointment of Counsel Because of
Conflict of Interest.7 By Order dated September 9, 2013,s the Court granted
counsel's Motion and appointed Todd M. Sponseller, Esq., as counsel for
Defendant.
On September 9, 2013,9 the Court, upon review of Defendant's Omnibus
Motion,10 entered an Order directing the Commonwealth to respond to the
Defendant's Motion within 14 days and scheduling the matter for a hearing on
December 16, 2013. On September 27, 2013, the Commonwealth filed an
Answer to Pre-Trial Omnibus Motion.
On October 10, 2013, Defendant filed a Motion for Reduction of Bail. On
October 14, 2013,11 the Court-? entered an Order directing the Commonwealth
to file a response within ten days and scheduled a hearing on Defendant's
Motionfor Reduction of Bail on November 20, 2013.
On October 31, 2013, Defendant filed a Motion for Continuance, which
the Court granted on the same date, continuing the matter to January 13,
2014, and excluding the period of time between October 31, 2013 and January
13, 2014, for the period of commencement of trial pursuant to Pa.R.Crim.P.
600. On December 13, 2013, Defendant filed a Motionfor Continuance, which
the Court granted on the same date continuing the matter to March 10, 2014,
7 This Motion was filed after the Court granted the Motion.
B Filed of record on September 10, 2013.
9 Filed of record on September 11, 2013.
10 Filed of record on August 29, 2013.
11 Filed of record on October 16, 2013.
12 This Order and all orders issued between October 14, 2013, and March 23, 2015, were
issued by the Honorable Douglas W. Herman.
3
and excluding the period of time between December 13, 2013, and March 10,
2014, for purposes of Pa.R.Crim.P. 600.
On December 16, 2013, the Court convened for a hearing on the
Defendant's Omnibus Motion; the Court also granted Defendant an extension to
file a notice of alibi to February 15, 2014. On February 28, 2014, the
Commonwealth filed a Motion to Consolidate Cases for Trial in dockets CR 747-
2013 and CR 748-2013. The Court granted said Motion on March 5, 2014.
On March 3, 2014, the Court conducted a Pre-Trial Conference and
entered a Pre-Trial Order of Court. On March 10, 2014, Defendant pled guilty to
one count of Manufacture, Delivery, or Possession with Intent to Manufacture
or Deliver+' in both above captioned dockets. Defendant was sentenced the
same date to 20 months to 60 months on each count, to be served
concurrently, and with credit for time previously served from March 11, 2013,
to March 10, 2014.
On April 9, 2014, Defendant, through counsel, filed an Application for
Leave to Proceed In Forma Pauperis, Notice of Appeal, and Request for
Transcripts. Contemporaneously with said filings, Attorney Sponseller filed a
Petition for Leave of Court to Withdraw as Counsel. On April 15, 2014, the
Court entered an Order directing Defendant to file a concise statement of
matters complained of on appeal pursuant to Pa.R.A.P. l 925(b). On April 16,
2014, the Court granted leave to Attorney Sponseller to withdraw as counsel
and appointed the law firm of Kulla, Barkdoll, and Stewart, to represent
13 35 Pa.C.S. § 780-l 13(a)(30).
4
Defendant. On May 6, 2014, Defendant, through counsel, withdrew his Notice
of Appeal.
On June 30, 2014, Defendant filed a pro se Motion for Post-Conviction
Collateral Relief On July 14, 2014, the Court entered an Order granting
Defendant in forma pauperis status, appointing Brett Beynon, Esq., as counsel
for the Defendant, granting Defendant leave to file an amended petition within
thirty days, and granting the Commonwealth thirty days to file a response. On
October 21, 2014, Attorney Beynon filed a Motion to Withdraw as Courisel+"
On October 30, 2014, the Court granted Attorney Beynon's Motion to Withdraw
as Counsel and appointed Matthew A. Sembach, Esq., as counsel for
Defendant.
On February 12, 2015, Defendant, through counsel, filed an Amended
Petition for Post-Conviction Collateral Relief On March 24, 2015, the Court=
scheduled an evidentiary hearing on the PCRA Petition for May 1, 2015, at 2:30
p.m.. On April 22, 2015, the Commonwealth filed a Motion to Continue
Evidentiary Hearing. On April 23, 2015, the Court granted said Motion and
continued the matter to May 22, 2015, at 9:00 a.m .. The Commonwealth filed
a Motion to Continue on May 11, 2015, which the Court granted on May 13,
2015,16 setting the matter for hearing on June 5, 2015, at 9:00 a.m ..
14 It is unclear to the Court why this Petition was filed more than four months after counsel was
appointed and significantly beyond the deadline for filing of an amended petition.
15 This Order and all subsequent orders were entered by the Undersigned.
16 Filed of record on May 14, 2015.
5
On June 1, 2015, Defendant filed a Motion for Continuance. The Court
granted said Motion on June 2, 2015,17 setting the matter for hearing on
August 3, 2015 at 9:00 a.m .. The Court conducted the evidentia:ry hearing as
scheduled on August 3, 2015, during which the Court heard testimony from
Joseph Labbate, Todd M. Sponseller, Esq., Defendant, and Sergeant Anthony
Rosenberry of the Chambersburg Police Department. At the conclusion of the
hearing, the Court entered an Order-'' directing the Commonwealth to file a
written argument not later than August 21, 2015, and Defendant to file a
response not later than September 11, 2015. The Commonwealth timely filed
its Memorandum of Law on August 20, 2015. Defendant timely submitted a
Brief to the Court in chambers on September 2, 2015; however, the Brief was
not filed of record. By Order dated September 30, 2015, the Court directed the
Clerk of Courts to file Defendant's Brief of record. This matter is now ready for
decision.
DISCUSSION
A. The Post Conviction Relief Act.
The Post Conviction Relief Act (PCRA)was enacted to provide individuals
who are convicted of crimes for which they are innocent, or those serving illegal
sentences, with a means to obtain collateral relief. See 42 Pa. C.S.A. § 9543.
To be eligible for relief under the statute, a petitioner must prove by a
preponderance of the evidence that he is currently serving a sentence and that
the issues raised in his petition have not been previously litigated or waived.
11 Filed of record on June 3, 2015.
is Filed of record on August 5, 2015.
6
42 Pa. C.S.A. § 9543 (a)(l). The petitioner must also prove by a preponderance
of the evidence that his conviction resulted from a circumstance enumerated in
42 Pa. C.S. § 9543(a)(2), and that "the failure to litigate the issue prior to or
during trial, or during unitary review or direct appeal" was not the result of a
"rational, strategic or tactical decision by counsel." Id.§ 9543(a)(4).
B. Claims of Ineffective Assistance of Counsel.
The Defendant alleges that trial counsel was ineffective. Under the
PCRA, a Petitioner may obtain relief if they can prove by a preponderance of the
evidence their conviction or sentence resulted from ineffective assistance of
counsel. 42 Pa. C.S.A. § 9543(a)(2)(ii). "It is well established that counsel is
presumed effective, and to rebut that presumption, the PCRA petitioner must
demonstrate that counsel's performance was deficient and that such deficiency
prejudiced him." Commonwealth v. Johnson, 51 A.3d 237, 243 (Pa. Super.
2012).
To succeed on a claim of ineffectiveness of counsel, the petitioner must
prove 1) the underlying legal issue has arguable merit; 2) counsel's actions
lacked an objectively reasonable basis, and 3) actual prejudice resulted from
counsel's act or omission. See Commonwealth v. Tedford, 960 A.2d 1, 12 (Pa.
2008) (citing Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)). All three
prongs of the ineffectiveness test must be proven or counsel's assistance is
deemed constitutionally effective. See Commonwealth v. Harvey, 812 A.2d
1190, 1196 (Pa. 2002). Pursuant to the above standards, this Court now
analyzes the sole issue raised by the Defendant.
7
C. Issue Raised - Rule 600 Violation.
Defendant asserts that courisel-? was ineffective for failing to file a
motion to dismiss pursuant to Pennsylvania Rule of Criminal Procedure 600
(the "speedy trial" rule). Rule 600 provides that "[t]rial in a court case in which
a written complaint is filed against the defendant shall commence within 365
days from the date on which the complaint is filed." Pa.R.Crim.P. 600(A)(2)(a).
The Complaint was issued on August 31, 2010, and the Defendant plead guilty
in both dockets on March 3, 2014. Defendant asserts that his speedy trial date
should have been August 31, 2011, and that the period of delay between
August 31, 2010, and March 10, 2014, was caused by the Commonwealth as
they failed to exercise due diligence in bringing the case to trial.
The mechanical run time between August 31, 2010, and March 10, 2014,
is 1,287 days. The Court previously granted Defense continuances excluding
the time period between August 29, 2013, to November 12, 2013,20 to January
13, 2014,21 and finally to March 3, 2014.22 There is no dispute that these
periods fall under Pa.R.Crim.P. 600(C)(2) and are excluded for purposes of
Pa.R.Crim.P. 600(A)(2). These continuance requests by the Defendant result in
the exclusion of 187 days from the Pa.R.Crim.P. 600 calculation.
19 The Court notes that the Defendant was represented by no less than three attorneys before
the Trial Court. His PCRA is directed at Attorney Sponseller alone; as such, the Court's
references to "counsel" hereafter refer to Attorney Sponseller.
20 By Order dated August 29, 2013.
21 By Order dated October 31, 2013. This Order excluded the time period between October 31,
2013, and January 31, 2013.
22 By Order dated December 13, 2013. This Order excluded the time period between December
13, 2013, and March 10, 2014.
8
The pnmary Issue raised In the PCRA Petition is whether the
Commonwealth exercised due diligence in attempting to apprehend the
Defendant during the 1,100 days between August 31, 2010,23 and August 29,
2013.24 Pursuant to Pa.R.Crim.P. 600(C)(l) "periods of delay at any stage of
the proceedings caused by the Commonwealth when the Commonwealth has
failed to exercise due diligence shall be included in the computation of the time
within which trial must commence. Any other periods of delay shall be
excluded from the computation." Pa.R.Crim.P. 600. To determine whether the
Commonwealth exercised due diligence:
the test is Not a venture into hindsight reasoning as to whether, if
certain individuals had been contacted, or other things done, an
arrest would probably have been made. The matter of availability
and due diligence must be judged by what Was done by the
authorities rather than what was not done. The standard of due
diligence demands only reasonable efforts.
Comm. v. Hinton, 409 A.2d 54, 57 - 58 (Pa.Super. 1979) (capitalization m
original).
Defendant's claim is without merit as the Commonwealth exercised due
diligence in attempting to serve the arrest warrant on the Defendant. Sgt.
Rosenberry testified that on September 2, 2010, he was part of a Warrant Task
Force with the United States Marshals Office and attempted to serve the
warrant. Sgt. Rosenberry made contact with Defendant's mother at 436 Main
Street, Chambersburg, Pennsylvania, which was the Defendant's last known
address. Sgt. Rosenberry informed Defendant's Mother why he was there, that
23 The date the Complaint was filed.
24 The date the Defendant first requested a continuance.
9
he had a warrant for the Defendant's arrest, and gave her his business card.
Defendant's mother informed the Sergeant that Defendant was residing in the
New York or New Jersey area. That same date, Sergeant Rosenberry received a
telephone call from Defendant-> wherein the Defendant inquired into why Sgt.
Rosenberry was at his mother's residence. Sgt. Rosenberry informed
Defendant about the warrant and that he needed to come in; Defendant asked
Sgt. Rosenberry why the warrant was issued.
The Commonwealth introduced into evidence Commonwealth's Exhibit 1
which consisted of an Attempted WmTant Service Log prepared by numerous
officers. Several officers made notes on the warrant service logs, and Sgt.
Rosenberry noted that the log in this case was significantly more detailed and
had more entries than a standard attempted warrant service log. On February
3, 2011, Officer Jones checked Def end ant's last known address and did not get
an answer. On February 4, 2011, Defendant was found on Facebook where it
appeared he was attending the Anthem Institute in New Jersey as a full time
student. Officers contacted the Hillside Police Department in New Jersey and
sent Defendant's National Crime Information Center (NCIC) information to the
Hillside Police Department.
In February 2012, Officer Leisher received information that Defendant
would be in the Chambersburg area. On this information, Officer Leisher
visited Defendant's mother to ask about Defendant. Defendant's mother was
contacted at least three times concerning Defendant's whereabouts. Sergeant
zs Sergeant Rosenberry testified that the phone call he received came from a phone number
believed to be owned by the Defendant.
10
Rosenberry testified that when he receives an address where a wanted
defendant is residing out of state, the standard practice is to contact the local
police department to have them serve the warrant.
In March 2013, Defendant was located in New Jersey through a TL026
search. Sergeant Rosenberry contacted law enforcement in New Jersey and
requested they respond to the address. Defendant was arrested in New Jersey
by the Orange Police Department.
For purposes of Rule 600:
excusable delay occurs where the delay is caused by
'circumstances beyond the Commonwealth's control and despite its
due diligence.' 'Due diligence is a fact-specific concept that must
be determined on a case-by-case basis. Due diligence does not
require perfect vigilance and punctilious care, but rather a showing
by the Commonwealth that a reasonable effort has been put forth.'
Comm. v. Roles, 116 A.3d 122, 125 (Pa.Super. 2015) (internal citations
omitted). The Court heard credible testimony from Sergeant Rosenberry that
the Attempted Wm,ant Service Log27 had significantly more entries than the
typical case. The Court heard testimony from James Labbate, a private
investigator from Spartan Detective Agency in Union New Jersey. Mr. Labbate
testified that he was able to conduct a reverse skip trace28 on Defendant's
whereabouts from August 2010 to April 3, 2013; the results of this search
listed numerous addresses that appear to be Defendant's addresses.s? This
report lists an address for Defendant from January 1, 2006 to February 15,
2015, of 436 S. Main St., Chambersburg, PA 17201. This address was checked
26 TLO is a free law enforcement database.
21 See Commonwealth Ex. l.
zs See Defendant's Ex. 1.
29 The Defendant testified that these were indeed the addresses where he was residing.
11
numerous times by police, as it was the address where Defendant's Mother
resided. Additionally, the reverse skip trace>" and the Attempted Warrant
Service Log31 contain an address of 1111 Salem Ave., Hillside, N.J.; Sgt.
Rosenberry testified that the Hillside Police Department was contacted to
attempt service of the arrest warrants.
While the Defendant argues that the Commonwealth did not put forth a
reasonable effort because there were numerous things they could have done to
locate the Defendant, that is not the standard the Court must apply to the
efforts of the Commonwealth. "The matter of availability and due diligence
must be judged by what Was done by the authorities rather than what was not
done." Commonwealth v. Hinton, 409 A.2d 54, 57 - 58 (Pa.Super.
1979)(capitalization in original). In Commonwealth v. Mitchell, the police
department had an address, which was checked multiple times, and circulated
a photograph of the defendant. Commonwealth v. Mitchell, 372 A.2d 826, 832
(Pa. 1977). In Mitchell, the defendant argued that because he received public
assistance, the police should have been able to arrest him on the first day he
could pick up a check following the warrant being issued. Id. However, the
Court in Mitchell found that there was nothing in the record indicating the
police knew the defendant was obtaining public assistance, nor that he became
employed after the issuance of the warrant, as the police had no direct
connection with the employer. Id.
30 See Defendant's Ex. 1.
31 See Commonwealth Ex. 1.
12
Defendant in this case argues that he should have been easily located
because he changed his address with the New Jersey Department of Motor
Vehicles, attended the Jersey Tractor Trailer School, graduated from the
Anthem Institute, applied for federal help through the FAFSA program, applied
for Social Security Benefits, received health benefits through the State of New
Jersey, received food stamps and cash payment through the SNAP program,
and received job placement services through the New Jersey Department of
Labor and Industry. See Defendant's Ex. 2 - 6. As was in the case in Mitchell,
there is nothing in the record to show that the Commonwealth knew that
Defendant was receiving public assistance or where he was employed after the
warrant was issued. Furthermore, after receiving information of Defendant's
attendance at the Anthem Institute in New Jersey, the Commonwealth
contacted the Anthem Institute in New Jersey in an attempt to locate
Defendant. "It is not the function of our courts to second guess the methods
used by police to locate arrested persons." Commonwealth v. Mitchell, 372 A.2d
826, 832 (Pa. 1977).
Because the Commonwealth exercised reasonable efforts in attempting to
locate Defendant, the time between the filing of the Criminal Complaint on
August 31, 2010, and the date Defendant was arrested32 would be excluded in
the calculation of time pursuant to Pa.R.Crim.P. 600(c). Further, because
there is no dispute that the time periods between August 29, 2013, and March
3, 2014, were previously excluded pursuant to Pa.R.Crim.P. 600, the result is a
32 April 3, 2013.
13
total of 1, 133 days would have been excluded for purposes of calculating the
Defendant's right to a speedy trial. As Defendant pled guilty on March 10,
2014, the total number of non-excludable days between the filing of the
Criminal Complaint and the time the Defendant entered a plea of guilty is 154
days; therefore, there was no violation of Pa.R.Crim.P. 600.
Based upon the evidence presented, it is clear to the Court that
Defendant's argument lacks merit as the Commonwealth would have
successfully met their burden by a preponderance of the evidence that they
acted with due diligence to bring the matter to trial. Therefore, trial counsel
was not ineffective for failing to file a motion to dismiss pursuant to
Pa.R.Crim.P. 600. See Commonwealth v. McBee, 520 A.2d 10, 14 (Pa. 1986).
Because the Court finds that Defendant's argument lacks merit, the Court will
not address the remaining prongs of the ineffectiveness of counsel analysis.
See Commonwealth v. Harvey, 812 A.2d 1190, 1196 (Pa. 2002).
CONCLUSION
This Court's review of the record and survey of the law reveals that
Defendant is not entitled to relief under the PCRA. Trial counsel was not
ineffective for failing to file a motion to dismiss pursuant to Pa.R.Crim.P. 600
as such motion would have been meritless. Consequently, the claims of
Defendant are without merit and the instant PCRA Petition will be denied. An
appropriate order follows.
14